The Hong Kong Court of First Instance (CFI) convicted 14 of 16 democracy activists of conspiring to commit subversion under Article 22(3) of the China-imposed National Security Law on Thursday over their roles in subverting state power to gain a controlling majority in the 2020 Legislative Council election and force then-Chief Executive Carrie Lam to resign under Article 52 of the Basic Law.
The prosecution stated that the defendants agreed to veto government budgets if they obtained a majority in the 2020 Legislative Council election to force Lam to address the “Five Demands Not One Less” demand, which included demands such as repealing the now-withdrawn extradition bill and for Lam to resign as Chief Executive. Lam would have been forced to dissolve the Legislative Council under Article 50 of the Basic Law and resign under Article 52 of the Basic Law if she refused to address the demand. The prosecution also said that the defendants continued to pursue their agreement although it became unlawful upon the promulgation of the China-imposed National Security Law on June 30, 2020.
While the defense argued that the defendants were not guilty of subversion as subverting state power involves the use or threat of force, the court referenced HKSAR v. Tam Tak Chi in finding modern acts of sedition exist in diversified forms and that non-violent acts are capable of constituting sedition. The court wrote:
Bearing in mind that the NSL was enacted to “prevent, suppress and punish” conducts and activities which endangered national security, we could not see any reason why the [National People’s Congress] would have so narrowly restricted “other unlawful means” in [Article 22 of the China-imposed National Security Law] to acts which would entail the use of “force or threat of force”.
The defense also argued that the prosecution was required to prove that the defendants knew they were engaging in unlawful acts. Nonetheless, the court held otherwise in finding that:
[T]he use of the word ‘unlawful’ in [Article 22 of the China-imposed National Security Law] was an adjective to qualify the actus reus of the offense rather than the requisite mens rea” … it was irrelevant to the issue of guilt that the accused acted with a mistaken belief that his or her means was lawful; to hold otherwise would go against the purpose of the [National Security Law].
The court acquitted Lau Wai-chung and Lee Yue-shun by finding that it is unclear if they intended to subvert state power. The court also stated that Lau did not advocate for the budgets to be vetoed and that it is unclear if Lee was a party to the agreement. Both Lau and Lee had clear criminal records. This is the first time defendants have been acquitted under the China-imposed National Security Law, which was promulgated to safeguard national security.
The Department of Justice will appeal the court’s acquittal of Lau Wai-chung and Lee Yue-shun under section 81D of the Criminal Procedure Ordinance. Previously, the government could not appeal against acquittals ruled by professional judges in the CFI. The government enacted these new sections in May 2023, believing that the prosecution should have the ability to appeal against erroneous acquittals to prevent possible miscarriage of justice and to safeguard national security.
